Babylonian Talmud: Tractate Baba Kamma

R. Kahana said: Whether [or not] we say in regard to the Sabbatical Year that wood is meant as a rule for heating was a matter of difference between the following Tannaim, as taught: The produce of the Sabbatical Year should be handed over neither for the purpose of steeping nor for the purpose of washing with them. R. Jose, however, says that the products of the Sabbatical Year may be put into steep and into the wash.2 Now, what was the reason of the Rabbis?3 Because Scripture said, 'for food' implying not for the purpose of steeping, 'for food' and not for the purpose of washing. But R. Jose said that Scripture stated 'for you',4 implying, for all your needs. But also according to the Rabbis was it not stated: 'for you'? — 'for you'5 should be analogous to 'for food', referring thus to any uses by which a benefit is derived from the products at the very time of their consumption, excluding thus the purposes of steeping and washing where the benefit is derived from the products after their consumption.6 But what does R. Jose make of 'for food'?7 — He might say to you that that was solely necessary for the ruling [of the Baraitha], as taught: 'for food', but not for a plaster. You say 'for food', but not for a plaster; why perhaps not otherwise, 'for food' but not for the purpose of washing? When it says 'for you'8 the purpose of washing is indicated; what then do I make of 'for food' [if not] 'for food', but not for a plaster. But what reason had you for including the purpose of washing and excluding the purpose of a plaster? — I include the purpose of washing as this is a requirement shared alike by all people,9 but exclude the purpose of plaster which is a requirement not shared alike by all people.10 Now, whose view would be followed in that statement which was taught: '"for food" but not for a plaster. "for food" but not for perfume, "for food" but not to make it into an emetic'? — It must be in accordance with R. Jose, for if in accordance with the Rabbis, the purpose of washing and steeping [should also be excluded].

R. JUDAH, HOWEVER, SAYS: IF THE INCREASE IN VALUE etc. (Mnemonic: SaBaN)11 R. Joseph was once sitting behind R. Abba in the presence of R. Huna, who was sitting and stating that the halachah was in accordance with R. Joshua b. Karhah and again that the halachah was in accordance with R. Judah. R. Joseph thereupon turned his face towards him12 and said: I understand his mentioning R. Joshua b. Karhah, as it was necessary to state that the halachah is in accordance with him, since you might have been inclined to think that the principle that where an individual differs from the majority the halachah is in accordance with the majority13 [applies also] here; it was therefore made known to us that [in this] case the halachah is in accordance with the individual. (What statement of R. Joshua b. Karhah is referred to? — That which was taught: 'R. Joshua b. Karhah says that a debt [recorded] in an instrument should not be collected from them,14 whereas debts [contracted by mere word] of mouth may be collected from them because this is no more than rescuing one's money from the hands of the debtors.')15 But why was it necessary to state that the halachah was in accordance with R. Judah? For his view was in the first instance stated as a point at issue [between the authorities] and subsequently as an anonymous ruling; and it is an established rule that if a view is first dealt with as a point at issue and then stated anonymously, the halachah is in accordance with the anonymous statement!16 The point at issue in this case was in Baba Kamma [IF WOOL WAS HANDED OVER TO A DYER] TO DYE IT RED BUT HE DYED IT BLACK, OR TO DYE IT BLACK BUT HE DYED IT RED, R. MEIR SAYS THAT HE WOULD HAVE TO PAY [THE OWNER] FOR THE VALUE OF HIS WOOL. BUT R. JUDAH SAYS: IF THE INCREASE IN VALUE EXCEEDS THE OUTLAY, THE OWNER WOULD REPAY TO THE DYER HIS OUTLAY, WHILE IF THE OUTLAY EXCEEDED THE INCREASE IN VALUE HE WOULD HAVE TO PAY HIM NO MORE THAN THE AMOUNT OF THE INCREASE, whereas the anonymous statement was made in Baba Mezi'a where we have learnt: 'Whichever party departs from the terms of the agreement is at a disadvantage, so also whichever party retracts from the agreement has the inferior claim'!17 — R. Huna considered that it was necessary for him to state so, since otherwise you might have thought that there was no precise order for [the teaching of] the Mishnah18 so that this [ruling of R. Judah] might perhaps have been in the first instance anonymous but subsequently a point at issue.19 [What does] R. Joseph [say to this]? — [He says] that if so, wherever a ruling is first a point at issue and then stated anonymously,20 it might be questioned that as no precise order may have been kept in [the teaching of] the Mishnah it might have been anonymous in the first instance and a point at issue later on!19 To this R. Huna would answer that we never say that there was no precise order in [the teaching of] the Mishnah in one and the same tractate, whereas in the case of two tractates we might indeed say so. R. Joseph however considered the whole of Nezikin21 to form only one tractate. If you like, again, I may say that it is because this ruling was stated among fixed laws: 'Whichever party departs from the terms of the agreement is at a disadvantage, and so also whichever party retracts from the argument has an inferior claim.'22

In which case the benefit is derived after the wood has already been burnt.

Suk. 40a.

The first Tanna.

Lev. XXV. 6: And the sabbath-produce of the land shall be for food for you.

Implying, for all your needs.

As when flax or a garment is put into wine the latter is spoilt before the former becomes thereby improved. According to the interpretation of Rashi a.l., R. Jose would maintain that we do not say that wood as a rule is destined for the purpose of heating, even as we do not say that fruits are meant only for eating and not for steeping or washing, whereas the Rabbis maintained otherwise; cf. however Tosaf. a.l., Rashi and Tosaf. on Suk. 40a.

Thus most probably excluding washing and steeping.

V. p. 590. n. 10.

Cf. Keth. 7a.

As it is used only by people afflicted with wounds.

Standing for the names of the three Rabbis that follow: JoSeph, ABba, HuNa.

Suk. 11a.

Ber. 9a.

I.e., from idolaters during the three days immediately before their religious festivals, as this might be a cause of special rejoicing to them and for offering additional thanksgiving to their idols, v. A.Z. 6b.

Since no documentary proof against them is available.

Yeb. 42b.

B.M. VI, 2. Why then was it necessary for R. Huna to state explicitly that the halachah is in accordance with the view of R. Judah?

Though its compilation was according to a definite plan and system; cf. Tosaf. a.l.

In which case the anonymous statement does not constitute the accepted halachah.

Where the anonymous statement is considered to be the accepted halachah.

According to R. Sherira Gaon, Maim. and others this refers only to B.K., B.M. and B.B. which constitute three gates of one tractate but not to Sanhedrin and the other tractates of this Order. A different view is taken by Ritba and others; cf. Yad Malachi 338, and Tosaf. Yom Tob in his introduction to Nezikin.

B.M. VI. 2. So that there was no need for R. Huna to state that the halachah rested with R. Judah.

to buy wheats and he bought with it barley, or barley and he bought with it wheat,1 it was taught in one Baraitha that 'if there was a loss, the loss would be sustained by him,2 and so also if there was a profit, the profit would be enjoyed by him,'2 but in another Baraitha it was taught that 'if there was a loss, he would sustain the loss, but if there was a profit, the profit would be divided between them.'3 [Why this difference of opinion?] — Said R. Johanan: There is no difficulty, as one4 was in accordance with R. Meir and the other with R. Judah; the former was in accordance with R. Meir who said5 that a change transfers ownership,6 whereas the latter was in accordance with R. Judah who said5 that a change does not transfer ownership.7 R. Eleazar demurred: Whence [can you know this]? May it not be perhaps that R. Meir meant his view to apply only to a matter which was intended to be used by the owner personally,8 but in regard to matters of merchandise9 he would not say so?10 — R. Eleazar therefore said that one as well as the other [Baraitha] might be in accordance with R. Meir, and there would still be no difficulty as the former dealt with a case where the grain was bought for domestic food,11 whereas in the latter12 it was bought for merchandise.13 Moreover, in the West they were even amused14 at the statement of R. Johanan regarding the view of R. Judah.7 for [they said] who was it that informed the vendor of the wheat so that he might transfer the ownership of the wheat to the owner of the money?15 R. Samuel b. Sasarti demurred: If so, why not also say the same even in the case where wheat [was wanted by the principal] and wheat [was bought by the agent]?16 — R. Abbahu however said: The case where wheat [was wanted] and wheat [was bought] is different, as in this case the agent was acting for the principal upon the terms of his mandate and it is the same [in law] as if the principal himself had done it.17 This could even be proved from what we have learnt: Neither in the case of one who has declared his possessions consecrated nor in the case of one who has dedicated the valuation of himself18 can the Temple treasurer claim either the garments of the wife or the garments of the children19 or the articles which were dyed for them or the new foot-wear bought for them.20 Now, why not ask here also: Who informed the dyer that he was transferring the ownership of his dye to the wife?21 But must we not then answer that since the husband was acting on behalf of his wife it is considered as if this was done by the actual hand of the wife? [If so,] also there as the agent was acting upon a mandate22 it is considered as if the purchase of the wheat had been done by the actual hand of the principal. R. Abba, however, said: No; it was because when a man declares his possessions sacred, he has no intention to include the garments of his wife and children.19 R. Zera demurred: Could it be said that in such circumstances a man would include in his mind even his Tefillin,23 and we have nevertheless learnt that 'in the case of one who declares his possessions sacred, even his Tefillin would have to be included in the estimate'?24 — Abaye, however, said to him: Yes, it is quite possible that a man may in his mind include even his Tefillin, as he who declares his possessions consecrated surely thinks that he is performing a commandment,25 but no man would in his mind include the garments of his wife and children as this would create ill feeling.26 R. Oshaia demurred: Was this not stated here as applying also to liabilities for vows of value, regarding which case we have learnt that those who have incurred liabilities for vows of value can be forced to give a pledge,27 though it could hardly be said that it was in the mind of a man that the giving of a pledge should be enforced upon himself? — R. Abba therefore said: One who declares his possessions consecrated is regarded as having from the very beginning transferred the ownership of the garments of his wife and children to them.

Our Rabbis taught: If one man buys a field in the name of another, he cannot compel the latter to sell it to him; but if he explicitly made this stipulation with the vendor he could force him to sell. What does this mean? Said R. Shesheth: What is meant is this: If one man buys a field from another in the name of the Exilarch,28 he cannot subsequently force the Exilarch to sell it to him,29 but if [when buying it] he explicitly made this stipulation30 he could compel the Exilarch to sell it.29

The Master stated: 'If one buys a field in the name of the Exilarch, he cannot subsequently force the Exilarch to sell it', thus implying that he31 would surely acquire title to it.32 Shall we say that this differs from the view of the scholars of the West33 who stated: Who indeed informed the vendor of the wheat so that he may transfer the ownership of the wheat to the owner of the money? — As far as that goes there would be no difficulty, as this could hold good where e.g., the vendee made this known to the owner of the field and also informed the witnesses [who signed the deed] about it. Read, however, the concluding clause: '[But if when buying it he explicitly made] this stipulation30 he cold compel the Exilarch to sell it.'29 But why should it be so? Why should the Exilarch not be entitled to say: 'I want neither your compliments34 nor your insults.'35 Abaye therefore said: what was meant was this: If one buys a field in the name of another

With the understanding that the Profit if any will be shared equally by principal and agent.

I.e., the agent.

I.e., between principal and agent in accordance with the original arrangement.

I.e., the former Baraitha.

In the case of wool given to a dyer to dye red and he dyed it black, as supra p. 586.

From which it would follow that on account of the change in the object purchased the ownership of it passed over to the agent who would thus enjoy the whole of any profit derived.

So that the principal is thus entitled to share any profit that may result from the transaction, though in the case of a loss he can back out and put it completely on the agent as he acted not in accordance with his mandate.

Such as wool to be used for his own garment, and a chair for his own use, as supra p. 586.

As was the case here with the wheat or barley.

For in such a case where the principal was merely out for profit he surely did not intend to distinguish between the objects of the purchase.

Which is on a par with the case of wool and where a change transfers ownership; v. n. 2.

Stating that the profit would be divided between principal and agent.

V. supra n. 6.

V. Sanh. 17b.

Why then should the wheat not altogether be the property of the agent since he acted ultra vires and thus set aside the mandate.

Since the vendor had no knowledge of the existence of the contract of agency between the purchaser and the principal.

Whereas in the case before us where the agent acted against the instructions, the mandate has thereby been set aside and the purchase could no more be ascribed to the principal.

Lev. XXVII, 1 ff.

Cf. supra p. 46.

'Ar. VI, 5.

But if the ownership of the dye was transferred to the husband and not to his wife, why then should the Temple treasurer have no claim on it.

And not ultra vires.

I.e., Phylacteries; cf. Deut. VI. 8.

'Ar. 23b. V. B.B. (Sonc. ed.) p. 652, n. 11.

Which in his view outweighs that of Deut. VI, 8.

And thus counteract the very purpose and function of sanctity and Sanctuary; Isa. LXI, 8 and Mal. I, 13; Mak. 11a.

'Ar. 21a, supra 40a.

He asked him to draw up the deed in the name of the Exilarch for the purpose of frightening away possible disputants.